Should a person living in the United Kingdom without permanent residence get a university loan? That is the question the court was asked recently.

The policy to qualify for a university loan provides that a student must (1) be resident in England at the start of the academic year, (2) be lawfully resident for at least three years before the start of the course and (3) be settled in the United Kingdom, this means that the individual must have an unrestricted right to live in the United Kingdom such a British passport, Indefinite Leave to Remain or Permanent Residence for European Nationals.

These rules were challenged in the case of a Zimbabwean national referred to as T. She came to the United Kingdom aged 6 with her mother, as a dependant of her father who was at the time in the UK on a student visa. Her father later left the UK and she continued to live and be educated in this country. She had completed reception, primary school, and sixth form and obtained 7 GSCEs and the equivalent of 3 A Levels with grades A*, A and C. In 2012, she was granted Discretionary Leave to remain in the UK extended to expire in 2018.

The issue before the court was whether a person without at least an Indefinite Leave status should qualify for a student loan. T argued that preventing her from applying for a student loan,simply because she has a Discretionary Leave to remain in the UK rather than an Indefinite Leave, was breach of her right to education under the European Convention on Human Rights 1950, and was also discriminatory.

The Court observed that while the ‘settlement rule’ was a good rule of thumb to identify those who should be eligible for student loans, as they have a right to work and stay in the UK permanently, there are also people like T who have lived here since childhood and had established their life in this country.

The impact on T and those in her position was clearly very serious. They would be deprived of higher education at a time in their life when primary and secondary education had led to a reasonable expectation of progressing to university.

Furthermore, it is crucial for a student to maintain the knowledge, habits and skills learned at A level and progress to higher education.

It is baffling that a person in T’s situation would be able to apply for, and access, state benefits. However, these individuals would be automatically disqualified from applying for a student loan; which, by it’s very nature, is repayable.

By denying students financial loans, any short-term savings the Government seek to make, could result in long term loss, as most of these students would qualify for loans from other organisations. Hence the Government would be missing out on not only the recouping of the student’s repayment but also on the substantial interest payable on the loan that increases with every year unpaid.

Given the circumstances, the court found that the issue relating to the ‘settlement rule’ for those in T’s position could not be justified and it was therefor with her Convention rights.

The Student Loan Policy has been referred back to the Government to consider redrafting the rules in a way that would avoid breaching the Convention rights of other applicants.